No.

2006-1441

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
_________________________________

MACROVISION CORPORATION,
Plaintiff-Appellee

v.

SIMA PRODUCTS CORPORATION,

Defendant-Appellant

_______________________________

On Appeal from the United States District Court

For the Southern District of New York
Senior Judge Richard Owen, Case No. 05-CV-5587
_______________________________

BRIEF AMICI CURIAE OF COMPUTER & COMMUNICATIONS

INDUSTRY ASSOCIATION, AMERICAN LIBRARY
ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES,
AMERICAN ASSOCIATION OF LAW LIBRARIES, MEDICAL
LIBRARY ASSOCIATION, SPECIAL LIBRARIES ASSOCIATION,
CONSUMER ELECTRONICS ASSOCIATION, HOME RECORDING
RIGHTS COALITION, AND ELECTRONIC FRONTIER
FOUNDATION IN SUPPORT OF SIMA PRODUCTS
CORPORATION AND URGING REVERSAL
________________________________

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle, NW, 8th Floor
Washington, D.C. 20036
(202) 296-5675
jband@policybandwidth.com

August 14, 2006 Counsel for Amici Curiae

1
 CERTIFICATE OF INTEREST

Pursuant to Federal Rule of Appellate Procedure 26.1 and Federal

Circuit Rule 47.4, counsel for amici curiae certifies the following:
1. The full name of every party or amicus represented by me is:
Computer & Communications Industry Association; American Library
Association; Association of Research Libraries; American Association of
Law Libraries; Medical Library Association; Special Libraries Association;
Consumer Electronics Association; Home Recording Rights Coalition;
Electronic Frontier Foundation.
2. The name of the real party in interest (if the party named in the
caption is not the real party in interest) represented by me is: None.
3. All parent corporations and any publicly held companies that own
10 percent or more of the stock of the party or amicus curiae represented by
me are: None.
4. The names of all law firms and the partners or associates that
appeared for the party or amicus now represented by me in the trial court or
agency or are expected to appear in this court are: Jonathan Band, see below.

/s/ Jonathan Band

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle, NW, 8th Floor
Washington, D.C. 20036
(202) 296-5675
jband@policybandwidth.com

August 14, 2006 Counsel for Amici Curiae

i
 TABLE OF CONTENTS

CERTIFICATE OF INTEREST ................................................................. i

TABLE OF CONTENTS .......................................................................... ii

TABLE OF AUTHORITIES .................................................................... iii

INTEREST OF AMICI ..............................................................................1

ARGUMENT .............................................................................................4

I. THE DISTRICT COURT’S OPINIONS OMIT FACTS CRITICAL

TO THE PROPER RESOLUTION OF THIS CASE ........................5

II. ACP IS NOT A TECHNOLOGICAL MEASURE THAT

EFFECTIVELY PROTECTS A RIGHT OF A COPYRIGHT
OWNER ...........................................................................................8

III. SIMA PRODUCTS DO NOT CIRCUMVENT ACP .....................13

IV. THE DISTRICT COURT’S SWEEPING INTERPRETATION

OF SECTION 1201(b) THREATENS A WIDE RANGE OF
LEGITIMATE PRODUCTS AND USES ......................................15

CONCLUSION ........................................................................................17

ii
 TABLE OF AUTHORITIES

CASES Page(s)

American Library Ass’n v. Federal Communications Comm’n,

406 F.3d 689 (D.C. Cir. 2005)................................................ 11

Chamberlain Group, Inc. v. Skylink Technologies, Inc.,

381 F.3d 1178 (Fed. Cir. 2004)........................................... 4, 16

Lexmark International, Inc. v. Static Control Components, Inc.,

387 F.3d 522 (6th Cir. 2004) ............................................ 12, 13

Macrovision v. Sima Prods. Corp., 2006 U.S. Dist. LEXIS

22106 (S.D.N.Y. 2006)............................................................. 6

Storage Technology Corp. v. Custom Hardware Engineering &

Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).......... 4, 15, 16

STATUTES

17 U.S.C. § 1201(a)................................................................. 4, 13

17 U.S.C. § 1201(a)(2) ................................................................ 13

17 U.S.C. § 1201(b).............................................................. passim

17 U.S.C. § 1201(b)(2) ................................................................ 13

17 U.S.C. § 1201(c)(3) ............................................................ 9, 12

17 U.S.C. § 1201(k).............................................................. passim

LEGISLATIVE MATERIALS

Communications, Consumer’s Choice, and Broadband Deployment

Act of 2006, S. 2686, 109th Cong. § 452 (2006) ................................... 11

144 Cong. Rec. S11889-91 (1998) (remarks of Sen. Hatch) .......... 7

iii
 144 Cong. Rec. S11890-91 (remarks of Sen. Leahy) ..................... 7

144 Cong. Rec. H10620-21 (remarks of Rep. Goodlatte) .............. 7

144 Cong. Rec. H10618-19 (remarks of Rep. Stearn).................... 7

MISCELLANEOUS

Bruce Joseph & Scott Bain, Copyright in the Digital World:

Basics, Law, and Policy (2005). ............................................. 10

Central America-Dominican Republic-United States Free Trade

Agreement, May 28, 2004, 43 I.L.M. 514............................... 11

United States-Chile Free Trade Agreement, June 6, 2003,

42 I.L.M. 1026 ....................................................................... 11

United States-Australia Free Trade Agreement, May 18, 2004,

43 I.L.M. 1248 ....................................................................... 11

United States-Morocco Free Trade Agreement, June 15, 2004,

44 I.L.M. 544 ......................................................................... 11

United States-Bahrain Free Trade Agreement, Sept. 14, 2004,

44 I.L.M. 544 ........................................................................ 12

United States-Peru Trade Promotion Agreement, Apr. 12, 2006, at

http://ustr.gov/Trade_Agreements/Bilateral/Peru_TPA/
Final_Texts/............................................................................ 12

Proposed United States-Colombia Trade Promotion Agreement, at

http://ustr.gov/Trade_Agreements/Bilateral/Colombia_FTA/Draft_
Text/....................................................................................... 12

iv
 STATEMENT OF INTEREST

The Computer & Communications Industry Association (CCIA) is

dedicated to open markets, open systems, and open networks. CCIA

members participate in many sectors of the computer, information

technology, and telecommunications industries and range in size from small

entrepreneurial firms to the largest in the industry. CCIA member

companies together employ nearly one million people and generate annual

revenues exceeding $200 billion.1

The Medical Library Association (MLA) is a nonprofit, educational

organization with more than 4,500 health sciences information professional

members worldwide. Founded in 1898, MLA provides lifelong educational

opportunities, supports a knowledge base of health information research, and

works with a global network of partners to promote the importance of

quality information for improved health to the health care community and

the public.

The American Association of Law Libraries (AALL) is a nonprofit

educational organization with over 5,000 members nationwide. AALL’s

1
Sima Products Corporation is a member of the Computer &
Communications Industry Association and the Consumer Electronics
Association. Ilana Diamond, President of Sima Products Corporation, is a
member of the CEA Board of Industry Leaders.
mission is to promote and enhance the value of law libraries to the legal and

public communities, to foster the profession of law librarianship, and to

provide leadership in the field of legal information and information policy.

The Association of Research Libraries (ARL) is a nonprofit

organization of 123 research libraries in North America. ARL’s members

include university libraries, public libraries, government and national

libraries. ARL influences the changing environment of scholarly

communication and the public policies that affect research libraries and the

communities they serve. ARL pursues this mission by advancing the goals

of its member research libraries, providing leadership in public and

information policy to the scholarly and higher education communities,

fostering the exchange of ideas and expertise, and shaping a future

environment that leverages its interests with those of allied organizations.

The Special Libraries Association (SLA) is a nonprofit global

organization for innovative information professionals and their strategic

partners. SLA serves more than 12,000 members in 83 countries in the

information profession, including corporate, academic and government

information specialists. SLA promotes and strengthens its members through

learning, advocacy and networking initiatives.

2
 The American Library Association (ALA) is the oldest and largest

library association in the world, with over 66,000 librarians, library trustees,

and other friends of libraries dedicated to improving library services and

promoting the public interest in a free and open information society.

The Consumer Electronics Association (CEA) is the preeminent trade

association of the U.S. consumer electronics industry. CEA members lead

the consumer electronics industry in the development, manufacturing, and

distribution of audio, video, mobile electronics, communications,

information technology, multimedia and accessory products, as well as

related services, which are sold through consumer channels. Its more than

2,100 corporate members contribute over $125 billion to the U.S. economy.2

The Home Recording Rights Coalition (HRRC) is a leading advocacy

group for consumers’ rights to use home electronics products for private,

non-commercial purposes. Its members include retailers, manufacturers,

consumers, and professional servicers of consumer electronics products.

The Electronic Frontier Foundation (EFF) is a member-supported,

nonprofit public interest organization devoted to maintaining the traditional

balance that copyright law strikes between the interests of copyright owners

and the interests of the public. Founded in 1990, EFF represents more than

2
See note 1, supra.

3
11,000 contributing members, including consumers, hobbyists, computer

programmers, entrepreneurs, students, teachers, and researchers united in

their reliance on a balanced copyright system that ensures adequate

protection for copyright owners while ensuring broad access to information

in the digital age.

Amici are creators and users of digital products. The District Court’s

cursory analysis of the Digital Millennium Copyright Act (DMCA) suggests

that a technology that digitizes analog content violates 17 U.S.C. §1201(b) if

the digitization happens to eliminate copyright protection measures.

Interpreting Section 1201(b) this broadly threatens a wide range of

legitimate technologies, and by extension, a wide range of legitimate uses.

Accordingly, this Court should reverse the District Court’s application of

Section 1201(b). Amici seek leave to file under Fed. R. App. P. 29(b).

ARGUMENT

This case is the latest chapter of the ongoing saga of efforts to use the

DMCA to prevent innovation and competition. In Chamberlain Group, Inc.

v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004), and Storage

Technology Corporation v. Custom Hardware Engineering & Consulting,

Inc., 421 F.3d 1307 (Fed. Cir. 2005), this Court was called upon to interpret

the proper scope of Section 1201(a) of the DMCA. This Court rejected the

4
expansive interpretations urged by the plaintiffs, and held instead that “a

copyright owner alleging a violation of section 1201(a)…must prove that the

circumvention of the technological measure either infringes or facilitates

infringing a right protected by the Copyright Act.” Id. at 1318 (citations and

quotations omitted).

Now this Court must reject an overly expansive interpretation of

Section 1201(b). The District Court below overlooked significant facts

concerning the operation of Macrovision’s technological measures as well as

Sima’s products. Application of a properly interpreted Section 1201(b) to

these facts compels the conclusion that Macrovision’s technological

measures do not effectively protect the rights of copyright owners.

Moreover, Sima’s products do not circumvent these measures within the

meaning of Section 1201(b). The interpretation of Section 1201(b)

advanced by Macrovision and the District Court would ban many products

with lawful uses, such as digital photocopiers with automatic page-turning

functionality.

I. THE DISTRICT COURT’S OPINIONS OMIT FACTS

CRITICAL TO THE PROPER RESOLUTION OF THIS
CASE.

In neither opinion below did the District Court make the detailed

findings of fact necessary in complex technology cases. While it noted that

5
the practical effect of Macrovision’s Analog Copy Protection (ACP) was “to

render videotaped copies of the analog signal so visually degraded as to be

unwatchable,” it did not explain how ACP produced this result. Similarly,

the District Court found that Sima sold products that “eliminate

Macrovision’s ACP from an analog signal,” but it failed to discuss how

Sima accomplished this. Macrovision v. Sima Prods. Corp., 2006 U.S. Dist.

LEXIS 22106, *2 (S.D.N.Y. 2006). Thus, the District Court overlooked the

two most important facts in this case: how the technological measure at issue

worked, and how Sima’s products allegedly circumvented it.

Fortunately, Sima has provided these facts in its papers filed in this

Court, and Macrovision has not contradicted them. See Sima Products

Corporation’s Emergency Motion for Stay of Preliminary Injunction

Pending Appeal at 5-6; Opposition of Appellee to Emergency Motion for

Stay of Preliminary Injunction Pending Appeal at 1-3; Sima Products

Corporation Brief at 5-6, 14-16.

Companies with a license from Macrovision imprint some Digital

Versatile Discs (DVDs) with “trigger bits” that cause a DVD player to

generate ACP. ACP introduces waveform distortions in the DVD player’s

analog output signal that viewers cannot discern on many televisions when

they view the analog signal directly, but that degrade the quality of a

6
recording made by most analog video cassette recorders (VCRs).

Manufacturers could easily redesign their analog VCRs not to respond

adversely to ACP, but Section 1201(k) prevents them from doing so.

However, since Section 1201(k) does not apply to digital recorders, they

remain free to disregard ACP.3

The Sima product enhances the quality of the analog signals produced

by a DVD player by digitizing them. ACP disappears when the digitization

occurs. The Sima product can also reconvert that digital signal into an

analog signal. In the normal operation of the product, ACP remains absent

when this conversion occurs. As a result, the signal does not interfere with

picture quality of those television models that ACP adversely affects.4 Nor

3
Section 1201(k)’s applicability only to analog recorders is evident from
its plain language. Additionally, Senator Hatch, then-Chairman of the
Judiciary Committee, stated: “It is also my understanding that the intent of
the conferees is that these provisions apply only to analog video recording
devices…. In addition, because innovation and technological development
thrive in unregulated environments, this section should not be misconstrued
as providing any impetus or precedent for regulating or otherwise dictating
to the computer software industry technological standards. I agree fully with
the assessment of the conferees that technology develops best and most
rapidly in response to marketplace forces. For these reasons, this section
applies to analog technologies only, and it is entirely without prejudice to
digital technologies.” 144 Cong. Rec. S11889-91 (1998) (remarks of Sen.
Hatch). See also 144 Cong. Rec. S11890-91 (remarks of Sen. Leahy); 144
Cong. Rec. H10620-21 (remarks of Rep. Goodlatte); 144 Cong. Rec.
H10618-19 (remarks of Rep. Stearn).
4
As Macrovision concedes, ACP does interfere with the picture quality on
some television sets in certain circumstances. Macrovision Opposition at

7
does it distort VCR recordings.

The District Court did not explain that ACP successfully degrades the

quality of videotaped copies only because Section 1201(k) prevents analog

VCR manufacturers from correcting the characteristic exploited by ACP to

degrade the copies. The District Court also did not explain that ACP only

interferes with analog videotape copies; it has no impact whatsoever on

higher quality digital copies, whether made by consumer “DVRs” or by

personal computers. Finally, the District Court did not explain that Sima

products “eliminate Macrovision’s ACP from an analog signal” simply by

digitizing that signal. Properly understood, these facts leave no room for the

conclusion that Sima’s products circumvent a technological measure that

effectively protects a right of a copyright owner.

II. ACP IS NOT A TECHNOLOGICAL MEASURE THAT

EFFECTIVELY PROTECTS A RIGHT OF A COPYRIGHT
OWNER.

Section 1201(b)(2) provides that a “technological measure ‘effectively

protects a right of a copyright owner under this title’ if the measure, in the

ordinary course of its operation, prevents, restricts, or otherwise limits the

12. For example, in addition to “the visible defects” cited by Macrovision,

ACP can introduce distortions or limit viewing resolution when the format
of the picture is “upconverted,” as for viewing on a high definition display,
or “downconverted,” as occurs within a “picture in picture” television. In
today’s viewing environment these conversions are increasingly necessary.

8
exercise of a right of a copyright owner under this title.” ACP does not meet

this statutory definition for three reasons.

First, ACP does not prevent or limit the exercise of a right of a

copyright owner. ACP does not prevent a VCR from making a copy of the

content stored on a DVD; rather, it prevents the VCR from making a good

copy of the content. But it nonetheless is a copy. Undoubtedly, the owner

of the copyright in that content would argue that the low quality copy still

infringes the reproduction right in the content, unless the copy is permitted

under one of copyright’s exceptions and limitations, e.g., fair use.

Second, the ACP does not, “in the ordinary course of its operation,”

prevent or limit the exercise of a copyright owner’s right. ACP does not

distort analog recordings on its own; it only distorts the analog recordings by

exploiting a characteristic of VCRs that Section 1201(k) prevents

manufacturers from correcting. Without this technology mandate, VCRs

could, and many did, ignore ACP. As Sima correctly explains, ACP is a

“passive” form of protection, and the DMCA prevents circumvention only of

“active,” self-implementing protection measures. See Sima Brief at 17.

Macrovision in its Opposition to Sima’s Motion for Stay dismisses the

active/passive distinction, observing that the words “passive” and “active”

do not appear in Section 1201. Macrovision Opposition at 10. But as

9
Sima’s detailed analysis of Section 1201’s plain language and legislative

history demonstrates, the active/passive distinction is fundamental to the

DMCA’s structure. The “no mandate” clause in Section 1201(c)(3) makes

sense only if it means that manufacturers need not respond to “passive”

signals. Otherwise, manufacturers would have to comply with a plethora of

potentially inconsistent signals.5

The fact is that, in the context of digital devices, ACP operates only as

a “flag,” not a “measure.” It can be read or ignored by a digital device, but

does not itself affect the ordinary operation of the device. Recognition of

such analog data, in the digital context, as a “technological measure” would

be novel, and contrary to the general understandings on which policy-

making is based. For example, Congress now is debating whether to

authorize the Federal Communications Commission to require

5
“[T]he so-called no mandate provision[] marks an important distinction
between circumvention and the normal operation of devices that handle
copyrighted materials. […] [C]ircumvention is not the same thing as
nonresponse. This provision is particularly relevant to nonaccess control
marking technologies where the content is in the clear (like an audio
compact disk or an over-the-air television broadcast) and the technology
only works if a device reads and responds to the mark. The provision was
included because of manufacturers’ concern that their products not be
obligated to respond to every possible mark that any copyright owner might
choose to use. Those marks might not only be unknowable, but the marks
could be inconsistent…. Even absent any direct conflicts, and even if it were
possible to build devices to respond to every conceivable [mark], the cost
would be prohibitively expensive for consumers.” Bruce Joseph & Scott
Bain, Copyright in the Digital World: Basics, Law, and Policy 22-23 (2005).

10
manufacturers of receivers of over-the-air digital television signals to

respond to a “broadcast flag” embedded in the signal stream. See

Communications, Consumer’s Choice, and Broadband Deployment Act of

2006, S. 2686, 109th Cong. § 452 (2006). Under the plan, receivers would

permit users to retransmit unflagged content, but not flagged content. If the

DMCA required the receivers to respond to “passive” measures such as the

broadcast flag, then Section 452, and the entire FCC proceeding on which it

is based, would be obviated. See American Library Ass’n v. Federal

Communications Comm’n, 406 F.3d 689 (D.C. Cir. 2005).

The “no mandate” rule represents such a fundamental principle of

U.S. copyright policy that it has been enshrined in no less than seven

international free trade agreements. Each reaffirms that the U.S.

Government has not undertaken to regulate the design of consumer

electronics worldwide by restating the principle that there is no obligation to

design products or select components so as to “provide for a response to

any particular technological measure.”6 To construe Section 1201(b) as

6
See, e.g., Central America-Dominican Republic-United States Free Trade
Agreement art. 15.5(7)(b), May 28, 2004, 43 I.L.M. 514, United States-
Chile Free Trade Agreement n.19, June 6, 2003, 42 I.L.M. 1026, United
States-Australia Free Trade Agreement art. 17.4(7)(c), May 18, 2004, 43
I.L.M. 1248, United States-Morocco Free Trade Agreement, art.
15.5(8)(b), June 15, 2004, 44 I.L.M. 544, United States-Bahrain Free Trade
Agreement art. 14.4(7)(c), Sept. 14, 2004, 44 I.L.M. 544, United States-

11
obligating Sima’s product to provide for a response to the ACP signal would

thus not only violate Section 1201(c)(3) but would be flatly inconsistent

with the United States’ international obligations embodied in these

agreements.

Third, ACP does not effectively protect a right of a copyright owner

because it does not prevent digital copying. The Sixth Circuit in Lexmark

International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th

Cir. 2004), considered whether an authentication sequence effectively

controlled access to Lexmark’s Printer Engine Program (PEP). The court

concluded that it did not, because there were other ways of accessing the

PEP: “anyone who purchases a Lexmark printer may read the literal code of

the [PEP] directly from the printer memory, with or without the benefit of

the authentication sequence….” Id. at 547. The court acknowledged that

the authentication sequence “may well block one form of access […] [b]ut it

does not block another relevant form of access….” Id. The court then

offered the following powerful analogy:

Just as one would not say that a lock on the back door of a
house ‘controls access’ to a house whose front door does not

Peru Trade Promotion Agreement art. 16.7(4)(c), Apr. 12, 2006, available
at http://ustr.gov/Trade_Agreements/Bilateral/Peru_TPA/Final_Texts/,
Proposed United States-Colombia Trade Promotion Agreement art.
16.7(4)(c), available at
http://ustr.gov/Trade_Agreements/Bilateral/Colombia_FTA/Draft_Text/.

12
 contain a lock…, it does not make sense to say that this
provision of the DMCA applies to otherwise readily accessible
copyrighted works.

Id. The court stressed that “the fact that the DMCA not only requires the

technological measure to ‘control access’ but also requires the measure to

control that access ‘effectively,’ 17 U.S.C. 1201(a)(2),” makes “clear that

this provision does not naturally extend to a technological measure that

restricts one form of access but leaves another route wide open.” Id.

The reasoning that the Lexmark court applied to Section 1201(a)(2)

applies with equal force to 1201(b)(2). A technological measure that

restricts one form of copying cannot “effectively protect[] a right of the

copyright owner” if it does nothing to prevent another form of copying of

the same content by the same consumer with products purchased at the same

store. While the ACP may discourage the making of analog copies by

degrading their quality, ACP does nothing whatsoever to prevent the making

of digital copies. Accordingly, ACP does not meet the statutory

requirements of Section 1201(b)(2).

III. SIMA PRODUCTS DO NOT CIRCUMVENT ACP.

The Lexmark court concluded that a technological measure that

prevents one form of access to a work, but permits another, does not

“effectively control access” to the work under Section 1201(a). This Court

13
could conceivably adopt a different interpretation with respect to the

neighboring subsection, Section 1201(b), and find that a technological

measure that prevents one form of copying while permitting another

“effectively protects” the work with respect to one form of copying. But

even if the Court were to adopt this different interpretation for Section

1201(b), Sima’s products still would not “circumvent” ACP. Consider the

analogy used by the Lexmark court. Although the lock on the back door

may effectively protect the back door, a person who enters the house through

the unlocked front door obviously does not “circumvent” the lock on the

back door; he would circumvent the lock only if he picked it. Similarly,

Sima products do not circumvent ACP by creating a digital copy, which

ACP is not designed to prevent.

The District Court compounded its error by basing in part its

circumvention finding on Sima’s failure to purchase a Philips chip that could

reinstall ACP into an analog signal made from the digital copy. This is like

requiring the person in the Lexmark analogy to install a lock on the unlocked

front door. In short, the District Court got Section 1201 exactly backwards.

While Section 1201 prohibits a manufacturer from creating breaches in a

technological protection measure, it does not prevent the manufacturer from

exploiting gaps left by the developer of the technological measure, and it

14
certainly does not obligate the manufacturer to fill those gaps.

IV. THE DISTRICT COURT’S SWEEPING INTERPRETATION

OF SECTION 1201(b) THREATENS A WIDE RANGE OF
LEGITIMATE PRODUCTS AND USES.

ACP is a passive technology that discourages the making of analog

copies by triggering the degradation of their quality and that has no impact

whatsoever on digital copies. If Sima products violate Section 1201(b) by

digitizing analog signals and thereby erasing ACP, then Section 1201(b)

covers a wide range of products with significant educational and research

uses.

For example, a publisher could decide to distribute a novel in a bound

analog format – a book – instead of in a digital format. Under the District

Court’s interpretation of Section 1201(b), the publisher would employ at

least two effective technological measures. First, the analog format prevents

clean reproduction; photocopies are of lower quality than a printout of a

digital copy. Additionally, the analog format prevents rapid redistribution.

While a digital copy can be disseminated globally with the press of a button,

the analog copy would first have to be scanned into a digital file.

Second, the binding prevents the book from being fed into a

photocopier or scanner unless the binding is broken. If the owner of the

book did not want to destroy the binding, he would have to photocopy one

15
page at a time, and the binding would further distort the quality of the image

near the binding’s crease. For many years, the cost of photocopying

combined with its relatively low quality discouraged large-scale preservation

projects by libraries.

Recently, however, technology firms have developed copiers with

automatic page-turning capability.7 These copiers use sophisticated digital

imaging that can produce high quality digital copies. Because they can

produce high quality digital copies of books at low cost, these copiers have

enabled libraries across the country, including the Library of Congress, to

embark upon massive digitization projects. Yet, under the District Court’s

interpretation of Section 1201(b), these copiers would violate the DMCA.

They are designed, produced, marketed, and used for the purpose of

defeating what the District Court would consider technological measures

that effectively protect a right of a copyright owner: bound pages of paper.

Just as in Skylink and Custom Hardware, this Court must interpret the

DMCA in a rational manner that does not chill the development of

innovations such as the page-turning copier or Sima products.

7
See, e.g., http://www.kirtas-tech.com/uploads/other/1200.pdf.

16
 CONCLUSION

For the foregoing reasons, this Court should reverse the District

Court’s grant of a preliminary injunction.

Respectfully submitted,

/s/ Jonathan Band

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle, NW, 8th Floor
Washington, D.C. 20036
(202) 296-5675
jband@policybandwidth.com

August 14, 2006 Counsel for Amici Curiae

17
 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) and (C) and Federal Circuit Rule 32(b). It is proportionally

spaced, has a typeface of 14 points or more, and contains 3,490 words.

Dated: Washington, District of Columbia

August 14, 2006

/s/ Jonathan Band

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle, NW, 8th Floor
Washington, D.C. 20036
(202) 296-5675
jband@policybandwidth.com
 CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2006, I caused two (2) copies of
the foregoing BRIEF AMICI CURIAE OF COMPUTER &
COMMUNICATIONS INDUSTRY ASSOCIATION, AMERICAN
LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH
LIBRARIES, AMERICAN ASSOCIATION OF LAW LIBRARIES,
MEDICAL LIBRARY ASSOCIATION, SPECIAL LIBRARIES
ASSOCIATION, CONSUMER ELECTRONICS ASSOCIATION, AND
HOME RECORDING RIGHTS COALITION, AND ELECTRONIC
FRONTIER FOUNDATION IN SUPPORT OF SIMA PRODUCTS
CORPORATION AND URGING REVERSAL to be served via the
overnight service of Federal Express on:

RONALD S. KATZ SETH D. GREENSTEIN

ROBERT D. BECKER CONSTANTINE CANNON
SHAWN G. HANSEN 1627 Eye Street, 10th Floor
MANATT PHELPS & PHILLIPS LLP Washington, DC 20006
1001 Page Mill Road, Building 2 (202) 204-3514 - Tel
Palo Alto, CA 94304 (202) 204-3501 - Fax
(650) 812-1300 - Tel
(650) 213-0260 -Fax

JAMES M. CARLSON
ROSS E. KIMBAROVSKY
UNGARETTI & HARRIS
3500 Three First National Plaza
Chicago, IL 60602
(312) 977-4400 - Tel
(312) 977-4405 - Fax

/s/ Matthew Schruers

Matthew Schruers